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Margaret Ann Wilkinson

The oldest legal devices forming part of the collectivity that became known as intellectual property (IP) are patents and copyrights. Both create time-limited, privately-held monopolies over information that encourage public dissemination of ideas. Examining these two and comparing them with three newer forms of information protection (data exclusivity, technological protection measures (TPM), and rights management information (RMI)), this chapter asks which, if any, of the latter three can also be properly defined as intellectual property. While data exclusivity has been associated with patent, the existence of patent is not necessary to the existence of data exclusivity. Similarly, while the statutory language enshrining TPM and RMI is typically associated with copyright and the technology involved can embrace works and other subject matter protected by copyright, the existence of neither TPM nor RMI protection is predicated upon the material involved being in copyright. Given that data exclusivity can exist independent of patent and neither TPM not RMI require that information associated with them be in copyright, it appears a mischaracterization to describe any of these later three devices as secondary to primary IP devices. Rather, data exclusivity, TPM and RMI appear better characterized as devices operating independent of either patent or copyright and channeling distribution of information in specific directions, typically ones dominated by corporate interests, censoring other channels of information distribution.

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Margaret Ann Wilkinson

Patent, copyright and trademarks (the ‘classic intellectual property triad’) balance monopoly interests with the contributions such monopolies make to dissemination of knowledge. It may be argued that more recent additions to the intellectual property (IP) canon, such as moral rights, and protection of business confidences (the ‘modern IP devices’) do not encourage dissemination of knowledge but rather give stakeholders perpetual control over certain knowledge. This chapter argues that the key to balancing stakeholders’ interests within IP as new technologies emerge is recognising that the classic IP triad worked effectively in the beginning only because there was then no legal separation between individuals and their businesses. This chapter argues that the differentiation of individuals from corporations, and the eventual dominance of the corporate form in business, is the leading cause of current tensions in IP law. The emergence of new technologies is exposing these tensions even more clearly but is not itself their cause.

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Margaret Ann Wilkinson

To rely on information, users need to both (a) access information and (b) assess its content by judging the authority of sources accessed. Though copyright facilitates access to information, copyright ownership mostly devolves away from authors, who then lack control over changes made to their works by those holding the copyright interests (often corporations). The moral rights of paternity and integrity arose after the rise of the legal concept of the corporation and can empower authors, ensuring authors authority over content they have created no matter who holds copyright. The global community's failure to fully embrace these two moral rights into law robs the public of necessary markers to help information users assess the validity and reliability of information. Librarians and others, by supporting moral rights principles and implementing them in their practices, whether legally required or not, can nevertheless bring about improved authority control for the information-seeking public.